Monthly Archives: February 2012

It’s very easy for me to appear in probate Courts throughout California. I can “appear” telephonically via CourtCall. It’s an incredible service that allows you to hire the most organized and efficient probate attorney regardless of where your probate case is in California. I have personally conducted probates in just about every single probate Court in the state and currently have matters pending in about 10 different counties; Sacramento, Placer, El Dorado, Yolo, Contra Costa, Solano, Alameda, Santa Clara, San Mateo, Los Angeles (multiple courts), and the list goes on!

If you want to talk about YOUR case in any county of California let’s talk!

Below is a list of just some of the cities and counties I can do probates in!

“I want to avoid a full probate because I have heard how horrible it can be.”

“What do we have to do to qualify to be a small estate?”

“Do we have to do a small estate if we have less than $150,000 in assets?”

These are some of the many common statements I hear regarding the California probate process. The state legislature’s recent change in the probate limits from $100,000 to $150,000 has given clients greater to ability to qualify as a small estate. However, just because it’s cheaper and takes less time does not mean it’s better for everybody.

The fact is that a small estate only clears title to assets. A small estate, or “succession,” does not deal with creditors, liabilities and taxes among other things.

A full probate is different in that it deals with clearing title to assets AND clearing up liability, creditor and tax issues.

In short with a full probate you can stand in the decedent’s shoes to transact business on his or her behalf. With a mini probate you are only getting a Court order dealing with specific assets you tell the Court about.

A mini probate is not right for all cases!

Look beyond the attorney fees, Court costs and time involved. Make sure your attorney tells you all the details that make one better or worse than the other for YOU!

Some things you can do to protect your assets for your family are easy to do and some are very difficult. Why not do the easy ones?

First of all you have to remember there are no simple magic trusts. If there was a magic trust that insulated a person from creditors and liabilities most people would get it. With asset protection you want to take steps to make you less of a target. You want to make it harder for creditors to get at your assets. It’s not going to a wall but rather you are placing hurdles. If you place enough hurdles you will be able to preserve your assets!

Here are a few easy things you can do:

1) FILE A HOMESTEAD EXEMPTION ON YOUR HOUSE – Though it’s not a huge number a homestead exemption protects equity in your home. Just get the form and file with the county recorder’s office.

2) CHANGE THE NAME OF YOUR TRUST – Don’t name your trust in your name. Put it in some other generic name. Call it the “Main Street Trust” or the “Blue Jeans Trust” or the “ABC Trust.” Call it anything but don’t put your name on the trust. Remember a lot of real estate databases that people use to look up targets for lawsuits are driven by names. If your name isn’t on your house it will be much harder to find!

3) SET UP A SPEND THRIFT TRUST FOR YOUR FAMILY – Though you can’t set up a magic trust for yourself you can set up a magic trust for your family. Most people do this for their kids to receive their assets after death. However, you can do it during life also. There is certainly more trust involved when you do it during life as you have to “give away” the assets but you can build in some protections.

4) SET UP A CORPORATION OR LLC – A business provides good asset protection and is very easy to set up. If you have a legitimate business, rental properties, or other such assets set up a legal entity and run it like a true business entity!

5) SET UP AN IRREVOCABLE HOUSE TRUST – It’s one of the simplest irrevocable trusts there are. A Qualified Personal Residence Trust (“QPRT”) is a great way to protect a valuable home for your loved ones!

I have other tricks and tools. Let’s talk about how I can help protect YOUR assets!

I have had a law practice focused on trusts, estates and probate since 1994. I have been involved with some thousands of wills, trusts, and probates during that time. I am not yet aware of a professional, third party, fiduciary stealing, making errors or generally causing trouble in the administration of a trust or estate. The same can not be said for using family as executors and trustees.

The combination of death and money can create monsters! It must be human nature because I have seen it happen to “the best guy” and to people “that get along great.” I have seen good people and bad people steal, make major errors and more generally cause trouble.

As an estate planning attorney my job is to help plan so your family dos not have problems after your death. The longer I do estate planning the more I frequently do I recommend professional fiduciaries. They do not bring the personal and emotional issues to the table. For them it’s a JOB! They take it seriously and do it well!

When looking beyond family and friends for an executor or trustee I normally consider the following options:

Bank or trust department – Pretty much all national banks and stock brokerage companies have trust departments.

Private Professional Fiduciaries – A growing profession is licensed individuals who specialize in serving as administrators, trustees and conservators.

Certified Public Accountants – Great with numbers they often are a great choice to serve as a trustee. However, if they do tax work they can become difficult to reach from March 1 until April 16th!

Attorneys – Like CPAs, attorneys have a license to protect. They also understand a fiduciary duty and conflicts of interest.

In my opinion these are the main options beyond family and friends. Any of the above can be bonded to provide a little extra security to your loved ones. By utilizing one of these people in your estate plan you decrease the chances of there being problems in the administration of your will or trust!

Contact me to discuss what option would be best for you and your family! -John

Letters Testamentary or Letters of Administration are the key in a California probate case. Testamentary means the Personal Representative (or “Executor”) is named in the will to serve. When the Letters are “of Administration” that means there was no will or that the person was not named in the will to serve. The latter more accurately would be called “Letters of Administration with will annexed.”

Getting “Letters” issued by the Court is the key that unlocks the probate world. That is the one document that allows the Executor or Administrator to stand in the decedent’s shoes and transact all business on their behalf.

Getting all your documents (proposed Order, bond if required, waivers of bond if going that direction, and the proposed letters) in order is the job of your California probate attorney. Having an organized lawyer is important for getting this done promptly and efficiently.

Since the 4 month probate period doesn’t start until Letters issue it’s additionally important to have them issue as soon as possible. Get the clock ticking!

It’s getting to the point where a large percentage of my probate Court work is for people that didn’t plan their trusts properly. That is, they failed to properly fund their trust. The key is getting ALL your assets lined up with the trust or with proper death beneficiaries. I say all assets as people forget about things or just fail to plan by saying “it’s small so it doesn’t matter if it’s in the trust.” Actually the small stuff can create the biggest headaches after death. Timeshares, safe deposit boxes, bonds that are sitting in your safe deposit box, and other similar assets create huge problems after death when not planned for before death! Make sure you hire a competent and experienced estate planning attorney so your loved ones don’t end up hiring a probate lawyer after you die!

You have worked hard to earn those airline miles, hotel points, credit card awards and the like. Make sure they don’t go POOF when you die! Most awards are transferable at death. Most have forms to be filled out by your loved ones, after death, to avoid a full probate. Some even allow a beneficiary to be named. If you want to make things as easy as possible for your loved ones, and make sure the points don’t get lost, make sure they know what you have!

Talk to me about complete estate plan that includes integrating points, miles and awards into your estate planning!

I always tell clients they can just bring themselves to the first estate planning meeting. I tell them they probably have all the information I need to know in their heads already. However, if you want to make sure you are ready for that first meeting here are FIVE important things to think about before the first meeting with your California estate planning lawyer.

1) Who will be guardian (and a back up or two) of your kids? That is, physical control and custody of your kids should you die before they turn 18.

2) Who should manage your finances when you can no longer do so? That is, by death or incapacity, when you can’t handle your financial affairs who should step in.

3) Who gets your assets when you die? I am talking about the big stuff like your home, bank accounts, etc….

4) Who gets your personal property when you die?

5) Who will make your medical choices for you when you no longer can do so?

Yes, there are many more but these 5 will get you heading in the right direction!

Make sure you hire a licensed and EXPERIENCED California estate planning attorney to assist you!

I actually have clients stop to see me on the way to the airport! Yes, really. On the way to the airport they stop to sign their new estate plan or amendments to their current estate plan. What if you don’t have time to stop? What if you are at SMF or any other airport in California and want to do your new will RIGHT NOW!? What if you are a hotel and your husband just said to you, “honey, we really should have updated our wills before we left… what if my brother Mark became guardian of our kids!?” Well, grab a piece of paper and a pen and do as follows IN YOUR OWN HANDWRITING. Then date it, sign it, and put it in a safe place!

I, ______________________ [insert your name] write this last will and testament.

I give all my property to my spouse at my death. If they aren’t alive I give it to _________________ .

I nominate ___________________ to be the Executor of my will. If they aren’t available I nominate _______________________ .

I appoint ____________________ to be the guardian of the estate and person for my children. If they aren’t available I appoint __________________ .

Signed:

Dated:

Of course this is a TEMPORARY solution. It works but it’s not ideal. A better solution is to hire a licensed and experienced California estate planning attorney and get a professionally prepared estate plan. Contact me with questions.

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Pledge From John

I pledge that I will help administer your probate or trust administration to be best suited to you, my client. I will serve you with integrity, professionalism and sensitivity. I will work with your goals, objectives and particularities in mind. I will do the work in an expedient, ethical and highly competent manner. I am dedicated to the bottom line, which is creating the best opportunities and advantages for my clients.
- John Palley